Last updated on 4th October, 2023
PLEASE REVIEW THESE CUSTOMEROS TERMS OF SERVICE CAREFULLY. ONCE ACCEPTED, THESE CUSTOMEROS TERMS OF SERVICE BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND CUSTOMEROS.
IF YOU DO NOT AGREE TO THESE CUSTOMEROS TERMS OF SERVICE, YOU SHOULD NOT ACCEPT THEM, CREATE AN ACCOUNT, OR USE THE SERVICES (AS DEFINED IN SECTION 1 (DEFINITIONS) BELOW).
THE SERVICES ARE INTENDED FOR BUSINESS USE ONLY.
These CustomerOS Terms of Service (“Agreement”) set forth the terms for your use of the Services and are effective as of the date you accept or otherwise agree to the terms of this Agreement (“Effective Date”). This Agreement is between the applicable CustomerOS entity identified below (“CustomerOS”) and you or the organization on whose behalf you are accepting or otherwise agreeing to the terms of this Agreement (“you", "your", "yours", or "Customer”).
CustomerOS entity entering into this Agreement:
Openline Communications Ltd., a company registered in the United Kingdom, whose registered address is 107 Cheapside, 9th Floor, London, EC2V 6DN, United Kingdom.
CustomerOS may update the terms of this Agreement from time to time. CustomerOS will provide you with written notice of any material updates prior to the date the updated version of this Agreement is effective, unless such material updates result from changes in laws or regulations.
The updated version of this Agreement will be available at https://www.customeros.ai/legal/terms-of-service
Notices for material updates to the terms of this Agreement will be given in accordance with Section 9.5 (Notices). Following such notice, your continued use of the Services on or after the date the updated version of this Agreement is effective and binding, as indicated at the top of this Agreement, constitutes your acceptance of the updated version of this Agreement. The updated version of this Agreement supersedes all prior versions. If you do not agree to the updated version of this Agreement, you must stop using the Services immediately.
Finally, you understand and acknowledge that by using the Services, you agree to have fun and delight your customers 🙂.
“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
“Customer Data” means data and other information made available by you to CustomerOS in connection with your use of the Services under this Agreement.
“Customer Services” means any software application or other products and services provided by you and used in connection with your use of the Services under this Agreement. If applicable, Customer Services includes sources from which you choose to retrieve Customer Data and destinations to which you choose to transmit Customer Data using the Services.
“CustomerOS Acceptable Use Policy” means certain terms relating to the use of the Services, the current version of which is available at [URL].
“Documentation” means CustomerOS documentation, including any usage guides and policies, for the Services, the current version of which is available at https://docs.customeros.ai
“End User” means any user of the Services, including via any Customer Services.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Services” means the products and services provided by CustomerOS or its Affiliates, as applicable, that you use, including, without limitation, products and services that are on a trial basis or otherwise free of charge. Services excludes any Customer Services.
“Service Usage Data” means any data that is derived from the use of the Services that does not directly or indirectly identify you, your End Users, or any natural person and includes (a) data such as volumes, frequencies, bounce rates, and Service performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you, your End Users, or any natural person.
Any capitalized term not defined in this Section 1 will have the meaning provided in this Agreement.
CustomerOS will:
(a) provide the Services to you pursuant to this Agreement and the applicable Documentation;
(b) provide the Services in accordance with laws applicable to CustomerOS’s provision of the Services to its customers generally (i.e., without regard for your particular use of the Services), subject to your use of the Services in accordance with this Agreement and the applicable Documentation
(c) make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete Malicious Code;
(d) if applicable, use trained, qualified personnel to provide the Services; and
(e) use commercially reasonable efforts to provide you with applicable support for the Services.
You will:
(a) be solely responsible for all use of the Services and Documentation under your account and the Customer Services;
(b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to your End Users) or offer them on a standalone basis;
(c) use the Services only in accordance with this Agreement, the CustomerOS Acceptable Use Policy, the applicable Documentation, and applicable law or regulation;
(d) be solely responsible for all acts, omissions, and activities of your End Users, including their compliance with this Agreement, the CustomerOS Acceptable Use Policy, the applicable Documentation, and applicable law or regulation;
(e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify CustomerOS promptly of any such unauthorized access or use;
(f) comply with your representations and warranties set forth in Section 5 (Representations, Warranties, and Disclaimer).
CustomerOS may suspend the Services upon written notice to you if CustomerOS, in good faith, determines:
(a) that you or your End Users materially breach (or CustomerOS, in good faith, believes that you or your End Users have materially breached) the CustomerOS Acceptable Use Policy;
(b) that its provision of the Services is prohibited by applicable law or regulation;
(c) there is any use of the Services by you or your End Users that threatens the security, integrity, or availability of the Services; or
(d) that information in your account is untrue, inaccurate, or incomplete.
You remain responsible for the Fees (as defined in Section 3.3 (Payment Terms)).
You acknowledge that the features and functions of the Services may change over time. It is your responsibility to ensure the Customer Services are compatible with the Services.
CustomerOS endeavors to avoid changes to the Services that are not backwards compatible, however, if any such changes become necessary, CustomerOS will use commercially reasonable efforts to notify you prior to implementation. In the event CustomerOS makes a non-backwards compatible change to certain Services and such change materially and negatively impacts your use of the Services (“Adverse Change”),
(a) you will notify CustomerOS of the Adverse Change and
(b) CustomerOS may agree to work with you to resolve or otherwise address the Adverse Change, except where CustomerOS, in its sole discretion, has determined that an Adverse Change is required for security reasons or to comply with applicable law or regulation.
You agree to pay the fees as described at https://www.customeros.ai/pricing
All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, or withholding taxes (collectively, “Taxes”). You will pay all Taxes in connection with this Agreement.
Except as otherwise expressly set forth herein, payment obligations are non-cancelable and fees and Taxes (collectively, “Fees”), once paid, are non-refundable. Subject to Section 3.3.3 (Payment Disputes), You will pay the Fees due hereunder in accordance with the following applicable payment method.
If you elect to use a credit card to pay the Fees due, you are responsible for ensuring such funds cover the Fees due. If your account does not have sufficient funds or your credit card declines a charge for the Fees due, CustomerOS may suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.
If you elect to receive invoices and CustomerOS approves you for the same, then,
(a) invoices will be sent to you each month, via email to the email address(es) you designate in your account and
(b) you will pay the Fees due within seven (7) days of the date of the invoice.
The Fees are payable in the currency specified on your invoice. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date CustomerOS provides you with written notice of the same, then CustomerOS may (i) assess and you will pay a late fee of the lesser of 1.5% per month or the maximum amount allowable by law and (ii) suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.
You will notify CustomerOS in writing within fifteen (15) days of the date CustomerOS bills you for any Fees that you wish to dispute. You may withhold the disputed Fees until the dispute is resolved. Where you are disputing any Fees, you must act reasonably and in good faith and will cooperate diligently with CustomerOS to resolve the dispute. CustomerOS will not charge you a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless you fail to cooperate diligently with CustomerOS or CustomerOS determines the dispute is not reasonable or brought in good faith by you.
As between the parties, CustomerOS exclusively owns and reserves all right, title, and interest in and to the Services, the Documentation, CustomerOS’s Confidential Information (as defined in Section 4.3.1 (Definition)), Service Usage Data, and any feedback or suggestions you or your End Users provide regarding the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to the Customer Services, your Confidential Information, and Customer Data, subject to CustomerOS’s rights to process Customer Data in accordance with this Agreement.
You grant CustomerOS and its Affiliates the right to process Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement and the CustomerOS Data Protection Addendum. You are responsible for the quality and integrity of Customer Data.
“Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including, without limitation, this Agreement, Customer Data, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how”, inventions, and financial, technical, or other business information and materials of Disclosing Party and its Affiliates.
Confidential Information does not include any information which:
(a) is publicly available through no breach of this Agreement or fault of Receiving Party;
(b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party;
(c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without violation of Disclosing Party's rights; or
(d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not
(a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under this Agreement and
(b) disclose or make Confidential Information of Disclosing Party available to any party, except to Receiving Party's Affiliates, and Receiving Party's and its Affiliates’ respective employees, legal counsel, accountants, contractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfill its obligations under this Agreement.
Receiving Party will be responsible for its Representatives’ compliance with this Section 4.3. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 4.3. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
Notwithstanding the foregoing, you may disclose CustomerOS’s SOC2 or similar report, which will constitute CustomerOS’s Confidential Information, only to your End Users or your End Users' employee or contract worker who has a “need to know” for such SOC2 or similar report and is legally bound to terms of confidentiality that are at least as protective as the terms of this Section 4.3.
Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party written notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.
The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 4.3 and that, in the event of an actual or threatened breach of the provisions of this Section 4.3, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
You grant CustomerOS the right to use and display your name, logo, and a description of your use case(s) on the CustomerOS website and in marketing and promotional materials, subject to your standard trademark usage guidelines that you expressly provide to CustomerOS.
Each party represents and warrants that it has validly accepted or entered into this Agreement and has the legal power to do so.
Each party:
(a) warrants that it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, and
(b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws.
You will promptly notify CustomerOS in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by CustomerOS. If applicable, you represent that you have obtained, and warrant that you will continue to obtain, all licenses or other authorizations required to export, re-export, or transfer the Services.
Each party represents that it (and in your case, also your End Users) is not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). You will immediately (i) discontinue your use of the Services if you become placed on any Sanctions List and (ii) remove your End Users’ access to the Services if your End Users become placed on any Sanctions List.
You represent that you have not, and warrant that you will not, export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section 5.2. If your account is blocked because it is operating in a country or region prohibited under this Section 5.2, you will receive notice of your account being inoperable when you attempt to log into your account in such prohibited country or region.
You represent and warrant that you have provided and will continue to provide adequate notices, and that you have obtained and will continue to obtain the necessary permissions and consents, to provide Customer Data to CustomerOS for processing pursuant to Section 4.2 (Customer Data).
CustomerOS represents and warrants that the Services perform materially in accordance with the applicable Documentation. Your exclusive remedy for a breach of this Section 5.4 will be, at the option of CustomerOS, to (a) remediate any material non-conformity or (b) refund you the Fees paid for the time period during which the affected Services do not comply with this Section 5.4.
WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.
CUSTOMEROS MAKES NO WARRANTIES AND WILL HAVE NO LIABILITY FOR ANY CUSTOMER SERVICES WHATSOEVER.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 6.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 6.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 6.1 AND SECTION 6.2 DO NOT APPLY TO
(a) YOUR BREACH OF SECTION 2.2 (CUSTOMER RESPONSIBILITIES); OR
(b) YOUR AND YOUR AFFILIATES’ BREACH OF SECTION 3 (FEES AND PAYMENT TERMS)
This Agreement will commence on the Effective Date and continue until terminated in accordance with Section 7.2 (Termination) (“Term”).
Either party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days prior written notice.
Either party may terminate this Agreement in the event the other party commits any material breach of this Agreement and fails to remedy such breach within fifteen (15) days of the date of written notice of such breach. For the avoidance of doubt, a breach of the CustomerOS Acceptable Use Policy will be considered a material breach of this Agreement. If CustomerOS terminates this Agreement because of your material breach, then CustomerOS will also close your accounts.
Subject to applicable law, either party may terminate this Agreement immediately by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
Upon termination of this Agreement, the terms of this Section 7.3 and the terms of the following Sections will survive:
Section 3 (Fees and Payment Terms),
Section 4 (Ownership, Customer Data, and Confidentiality),
Section 5.5 (Disclaimer),
Section 6 (Limitation of Liability),
Section 8 (General), and
any applicable terms in Section 9 (Additional Terms).
Your Affiliates may use the Services under and in accordance with the terms of this Agreement. You represent and warrant that you have sufficient rights and the authority to make this Agreement binding upon each of your Affiliates. You and each of your Affiliates will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement and such Affiliate’s use of the Services. Only you will bring any claim against CustomerOS on behalf of your Affiliates.
An Affiliate of CustomerOS may provide the Services, or a portion thereof, to you or your Affiliates, as applicable, in accordance with this Agreement. CustomerOS will
(a) be responsible for the Services its Affiliates provide and
(b) not be relieved of its obligations under this Agreement if its Affiliates provide the Services or a portion thereof.
Neither party may assign or otherwise transfer this Agreement, in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign this Agreement, in whole or in part, without consent to
(a) a successor to all or part of its assets or business or
(b) an Affiliate.
Any attempted assignment or transfer by either party in violation hereof will be void. Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and permitted assigns.
Each party is an independent contractor in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities, damages, or debts of any type whatsoever that may arise on account of its activities, or those of its employees and agents, in the performance of this Agreement. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
This Agreement does not confer any benefits on any third party (including your End Users or an Affiliate) unless it expressly states that it does.
Notices to CustomerOS will be provided via email to legalnotices@customeros.ai. All notices to you will be provided via email to the relevant contact(s) you designate in your account.
This Agreement will be governed by and interpreted according to the laws of England and Wales without regard to conflicts of laws and principles that would cause the application of the laws of another jurisdiction.
This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Except as provided in Section 8.7 (Dispute Resolution), any legal suit, action, or proceeding arising out of or relating to this Agreement or the Services will be instituted in the applicable courts identified below and the parties hereby consent to the personal jurisdiction of these courts. In the event of any adjudication of any dispute under this Agreement, the prevailing party in such legal suit, action, or proceeding will be entitled to reimbursement of its attorneys’ fees and related costs by the non-prevailing party.
In the event of any dispute, claim, or controversy in connection with this Agreement (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in the English language in London, England.
No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.
No failure or delay by either party in exercising any right or enforcing any provision under this Agreement will constitute a waiver of that right or provision, or any other provision. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the CustomerOS Data Protection Addendum, (2) the terms set forth in the body of this CustomerOS Terms of Service, (3) the CustomerOS Acceptable Use Policy, (4) any other terms incorporated by reference herein or any other exhibits or attachments hereto, and (5) the applicable Documentation.
In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.
This Agreement (including all exhibits and attachments hereto) will constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, proposals, statements, sales materials, presentations, or non-disclosure or other agreements, whether oral or written. No oral or written information or advice given by CustomerOS, its agents, or its employees will create a warranty or in any way increase the scope of the warranties or obligations in this Agreement. The parties agree that any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document will be construed solely as evidence of your internal business processes and the terms and conditions contained therein will be void and have no effect with regard to this Agreement, even if accepted by CustomerOS or executed by the parties after the Effective Date.
©2023 Openline Communications Ltd
